FIRST CIRCUIT COURT
NATIVE HAWAIIAN LKOAL CORPORATION STATE OF HAWAII
1 1 64 Bishop Street, Suite 1 205
Honolulu, Hawaii 96813
Telephone: 108.521-2302
Facsimile: 808-537-4268
ASHLEY K. OBREY 9199
CAM1LLE K. KALAMA 8420
Attorneys for Plaintiff LEIGHTON PANG KEE
ai!2 StP 2U PM 3s 06
H. CHING
CLERK
IN THE CIRCUIT COURT OF THE FIRST CIRCUIT
STATE OF HAWAII
LEIGHTON PANG KEE,
Plaintiff,
VI,
JOBIE MASAGATANI, in her official
capacity as Chairperson of the Hawaiian
Homes Commission and the Director of
the Department of Hawaiian Home
Lands; HAWAIIAN HOMES
COMMISSION; and the DEPARTMENT
OF HAWAIIAN HOME LANDS.
STATE OF HAWAI I,
Civil No.
(Declaratory Judgment)
12-1-2403-09
VLC
COMPLAINT FOR DECLARATORY AND
INJUNCTIVE RELIEF; SUMMONS
Defendants.
This civil action for daclaratoty and ii^«nctiveieliefi«sf*ctlUIyi^u^tt»at»is
Honorable Court permanently enjoin Defendant Department of Hawaiian Home Lands, State of
Hawai i CDHHL") from disqualifying applicants for homestead leases based upon applicants'
Mood quantum without firat adopting rational standatite fewwgh piof>er rote maUag
for the consideration of evidence, including DNA test results, to be used in the determination of
applicants' blood quantum and order Defendants to qualify Plaintiff Leighton Niakala Pang Kee
f Plaintiff') as a beneficiary of the Hawaiian Homelands Trust as he has provided sufficient
evidence to meet the statutory requirement for proving eligibility as a native Hawaiian.
JURISDICTION
1 . This is a civil action which arises Article XII, §§ 1,2 and 3 of the HawaTi State
Constitution and the HHCA.
2. This Court has jurisdiction over the claims for relief in this action pursuant to
Hawaii Revised Statutes (HRS) §§ 632-1, 603-2 1.5(aX3), 603-21.9, and 661-1.
PARTIES
3. Plaintiff is and, at all times mentioned herein, has been a citizen of the United
States, and a resident of the State of Hawaii.
4. Defendant Jobie Masagatani is the Chairperson of the Hawaiian Homes
Commission and the Director of the DHHL.
5. Defendant Hawaiian Homes Commission ("HHC") is the governing entity
ultimately responsible for the implementation of the Hawaiian Homes Commission Act of 1920
*
("HHCA") and its members are ultimately responsible for the approval of an applicant's
qualification as an eligible lessee of a homestead parcel under Section 207 and 208 of the
HHCA.
6. Defendant DHHL is a state agency overseen by the HHC, which is responsible for
daily administration of Hawaiian Homestead leases under the HHCA.
FACTUAL
7. Sometime in early I960, Ms. Florence Kanani Silva ("Ms. Silva"} met Mr. Earick
Kukonu, Sr. ("Mr. Kukonu") while she was living near htm in KaiihJ, O Hawai L
8, A brief sexual relationship between Ms. Silva and Mr, Kukon u resulted in the
conception and birth of Plaintiff,
9. Plaintiff was bom in Honolulu, O'ahu, Hawai i on December 30, 1960, under the
name of Eric Sonny Niakala Silva.
2
HI.
I'Uiuiiif s original birth certificate from the Department of Health identifies his
luMural mother as Florence Kanani Silva but does not state the name, race, age, birthplace or
twupition of his father, Mr. Kukonu,
II,
13,
Ms, Silva was born on September 7, 1943 in Honolulu, O'ahu, Hawai i.
Although she was subsequently adopted, a letter dated October 1 7, 2006, from the
|<irNt Circuit Court indicates that Ms. Silva's biological mother was part-Hawaiian and her father
was 1 lawaiian,
13,
14,
1?.
Ms, Silva is of no less than 81 .25% Hawaiian %
Mr, Kukonu ww bora In Honolulu, O'ahu, Hawaii, on July 6, 1941.
Mr, Kukonu* a birth certificate, which is on file with the Department of Health and
registered m number 151 1 94 1 -000686, states that both his mother, Hannah Momi Needham, and
his fettor. Gabriel Uni Kukonu, were native Hawaii*
16,
17,
On February 14, 1964, Anthony Pang Kee legally adopted Plai
M III
After Plaintiff's adoption, Plaintiff's original birth certificate was sealed. A
amended birth certificate is on file with the Department of Health and identified as bird
certificate number 151 60 16641, the same number as die original.
18
Plaintiffs natural father, Mr. Kukonu, died on April 28, 1983 in Honolulu, O'ahu,
Hawai'1. His death certificate is on file with the Department of Health and identified as death
certificate number 151 1 964.
19.
Mr, Kukonu was survived by two full biological brothers, including Rodney
William Kukonu ("Rodney Kukonu"),
20.
Rodney Kukonu qualified for Hawaiian Home Lands benefits and is currently a
lessee en a Hawaiian Home Lands homestead in Nanakuli, O'ahu. He is also at least 50%
Hawaiian ancestry,
21. On or about March 3 1 , 2000, Plaintiff applied to the Defendant Department of
Hawaiian Home Lands (DHHL) for a homestead lease.
22,
In a letter dated May 23, 2000, DHHL notified Plaintiff that it was returning his
application because Ws birth certificate indicated that it was amended and not the original.
23,
fe a letter dated October 9, 2000, Defendant DHHL informed Plaintiff that it was
unable to verify his blood quantum at 50% and that it
Hawaiian Heme Lands benefits,
determined that he was ineligible for
3
24. 1ft 200 1 , Plaintiff, in an attempt to amend his returned appiiealiofl, f§qiwm4 W#
adoplhui wmk from the Family Court and was informed that there was m Information" in his
word rep^ling the ancestry of his birth father.
IS, Plaintiff subsequently learned that his natural father's full biological bfOfhw,
Rodney Kukonu, lived in Nanakuli, Oahu, Hawai'i.
20. Rodney Kukonu recalled the circumstances of Plaintiffs childhood m4 wm
ftwnUiar with Plaintiffs relation to his late brother, Earick Kukonu, Sr., so hi agreed to miffi
Plaintiff in avuncular DNA testing to establish the certainty of their kinship,
21, On or about June 1 0, 2009, Rodney Kukonu met Plaintiff at the office of Or,
Georp 1, Raquel in Waipahu, O ahu, Hawai'i, to provide the requisite samples for a DNA
kinship test,
18. Dr. Raquel first confirmed both Rodney Kukonu and the Plaintiffs identltfea and
photocopied their respective drivers' licenses for his records.
29, After taking Rodney Kukonu's and Plaintiffs ONA samples, Dr, Raquel sealed
and sent them, via Federal Express two day delivery, to Chromosomal Laboratories Inc. a
nationally accredited DNA testing company, located in Phoenix, Arizona.
30. On or about June 1 5, 2009, after Plaintiff and Mr. Kukonu's DNA sample* were
tested, Chromosomal Labs issued an Avuncular Report-Legal Test, signed by Dr, Vlfiee Miller,
Ph.D., which indicated that the probability of Mr. Kukonu's relationship as an Uncle to Plaintiff
was 9435%.
31. In March 20 1 2, Plaintiff again applied to the DHHL for a HawaP 1 Islandwide
Residential Lot Lease and a Hawai i Islandwide Agricultural Lot Lease.
32, In support of his applications, Plaintiff submitted the positive DNA test results
with his uncle Rodney William Kukonu along with other relevant vital records and an affidavit
Of a cousin who attested to die circumstances of his birth and explained that she and her My
knew that Mr, Kukonu we* Plaintiff's natural father.
33, On o* about May 2, 2012, the DHHL responded, acknowledging In March St,
20 1 2, receipt of the application and communicating its denial of Plaintiffs application
34. The DHHL cited the following reason for denying Plaintiff's application;
The Department has not made the decision whether to accept DNA te»t re»ult» m
evidence of Hawaiian ancestry, much less the degree of certainty the Department
will aceept as proof of Hawaiian ancestry through DNA testing, nor doea the
■■■4 .
35.
Department possess the expertise necessary to interpret and evaluate DNA test
results. Therefore, at the present time we are unable to use your test results to
determine whether you have the requisite Hawaiian ancestry to qualify for
Department benefits.
The DHHL additionally informed Plaintiff that his recourse was to address the
Hawaiian Homes Commission (HHC).
36. On May 22, 20 1 2, Plaintiff, through his attorneys, formally requested to appear
before the HHC at its next regularly scheduled meeting pursuant to Hawafi Administrative
Rules (HAR) § 10-3-3(b).
37.
On or about June 8, 2012, the Chairman Designate Jobie Masagatani sent Plaintiff
a letter approving Plaintiffs request.
38.
On June 18, 2012, Plaintiffs attorneys appeared before the HHC on his behalf,
asking that the HHC (1) reconsider the DHHL's arbitrary denial of Mr. Pang Kee's application
for a Hawaiian Home Lands lease based on its refusal to adopt a rule or interpret an existing rule
justifying the acceptability of DNA as evidence to prove the requisite blood quantum for a
Hawaiian Home Lands lease and (2) set a clear policy accepting DNA test results as a means to
prove that an applicant is qualified pursuant to the statute.
39. To date, the HHC has taken no action regarding Plaintiff s requests.
40. Plaintiff desires to have the DHHL accept this DNA evidence as proof of the
identity of his natural father and, ultimately, as proof of his Hawaiian ancestry for purposes of
eligibility for Hawaiian Home Lands benefits.
COUNT 1
(VIOLATION OF HAWAIIAN HOMES COMMISSION ACT SECTION 222)
Plaintiff hereby realleges and incorporates by reference all the above allegations,
The Hawaiian Homes Commission Act (HHC A) § 222 states that w [t]he
department . . . shall adopt rules in accordance with chapter 91, Hawaii Revised Statutes, as are
41.
42.
necessary
for the efficient execution of the functions vested in the department by this Act."
(Emphasis added).
43.
HRS § 9 1 -2 provides in relevant part that:
(a) In addition to other rulemaking requirements imposed by law, each agency
shall:
5
submittals
whereby the
' * x
discharge of its AiHMta
lie inspection all rules and written statements c
ffitulated, adopted, or used by the agency in the
* % %
* i 4
lb) No ftlle, Oftlef, Of Qp\n\M shall be valid ot effective against any person
or party, not way il be l»ivt)ked by the ageticy fot any purpose, until it has been
jwWishet! or made available fbt public inspection as herein required, except whore
a person has mim\ knowledge thereof.
Indeed, roles regarding the standard for the requisite scientific evidence in support
of any homestead application are neeessary In order for applicants to prove they are qualified for
HHCA benefits,
45,
Regarding qualifications of applicants, Hawaii Administrative Rules (HAR) §
\ 0*3-2 currently provides*
(a) Applicants tor residential, agricultural, or pastoral lot leases shall provide the
department with documented proof that the applicant is;
(1) At least eighteen years of age; and
(2) A native Hawaiian,
(b) \n addition to the qualifications required in subsection (a), a person applying for as
agricultural or pastoral lease may be required to comply with section 10-3-24 before a
lease award tor an agricultural or pastoral lot can be made,
(Emphasis added),
46,
The rules are silent as to what type of evidence constitutes the requisite
^documented proof ' that the applicant Is a native Hawaiian,
47* Detondant Department accepts vital records as proof of Hawaiian ancestry,
without any explicit standard tor accepting such documentation as evidence of homestead
eligibility,
48,
However, gaps In vital records, like the absence of any explicit identification of
paternity, require that other types of evidence must be accepted for this critical determination.
49, Because Defendant Department must adopt rules "necessary for the efficient
execution of the functions vested In the department by th(e HHCA],** it must adopt rules on what
types of evidence applicants could submit to supplement vital records when there are such gaps.
<y AMi v, Imin, 73 Haw, 56, 60, 821 Md 802, 804 (1 092) (where appellants contended that
the Department of Health erred In issuing a permit when there were no rules promulgated in
6
accordance with HRS Chapter 91 governing the issuance of such permits, the Court held that
"fairness to the public and potential applicants . . . dictates that the rules adopted by DOH be
known beforehand").
50.
In order to avoid arbitrary actions and invalid or ineffective eligibility
determinations, Defendant HHC - as trustees of the Hawaiian Home Lands trust - must require
that Defendant Department adopt rules related to the specific documentation acceptable,
including the standards of DNA testing, to substantiate eligibility for receipt of a homestead
lease pursuant to HHCA § 222.
COUNT 2
(VIOLATION OF COMMON LAW BREACH OF TRUST OR FIDUCIARY DUTY)
5 1 . Plaintiff hereby realleges and incorporates by reference all the above allegations.
52. Pursuant to the Hawaiian Homes Commission Act (HHCA), the State owes "a
high duty of care" to Native Hawaiians. See Ahuna v. DHHL, 64 Haw. 327, 336, 640 P.2d 1 161
1167 (1982).
53.
Defendant HHC is, essentially, a group of trustees of the Hawaiian Home Lands
trust, and under trust principles applicable to all trustees, Defendant HHC must fulfill its trust
duties to Native Hawaiians. Kalima v. State, 1 1 1 Hawaii 84, 87-88, 137 P.3d 990, 993-94
(2006) ("The HHCA, together with the Hawaii Admission Act, impose upon the State the duties
and obligations of trustee to oversee the operations carried out under the authority of the
HHCA.").
54.
All trustees owe a duty to carry out the trust in accordance with the terms of the
trust as well as a duty to act in good faith in the administration of the trust, which requires,
among other things, that they act with undivided loyalty to the trust and to the interests of the
beneficiary.
55. Defendants owe their beneficiaries this duty of good faith and loyalty and must,
therefore, diligently act to implement the explicit terms of the trust.
56.
Section 101 of the HHCA establishes that two of the principal purposes of the Act
are:
(1) Establishing a permanent land base for the benefit and use of native Hawaiians, upon
which they may live, farm, ranch, and otherwise engage in commercial or industrial or
any other activities as authorized in this Act*
7
(2) Placing native Hawaiian* on the lands set aside under this Act in a prompt and
efficient manner and assuring long-term tenancy to beneficiaries of this Act and their
successors [ * j
57. In other words, Defendants must place Native Hawaiians on the land "in a prompt
and efficient manner" - not erect or create additional insurmountable obstacles for them to get
on the land.
58. By failing to promulgate rules pursuant to HHCA § 222, Defendants have failed
to give proper notice as to what does and does not constitute proper evidence to qualify for
Hawaiian Home Lands benefits.
59. As a result, potential beneficiaries have the unconscionable burden of guessing
which types of evidence will be accepted by the Department once Defendant DHHL rejects their
applications on the basis of insufficient evidence,
60. This guessing game is not the responsibility of potential beneficiaries who would
otherwise be qualified under the HHCA; rather, it is the duty of Defendants to ensure that the
beneficiaries' best interests are met, which includes providing them guidance as to what they
need to submit as part of their applications.
6 1 . Indeed, the HHCA requires that Defendant Department adopt rules "as are
necessary for the efficient execution of the functions vested in the department by th[e HHCA].
HHCA § 222.
62. By failing to require that Defendant Department adopt such rules, Defendant
HHC has breached its fiduciary duties to its beneficiaries to implement the terms of the trust.
63 . Under Haw. Const. Art. 1 2, § 1 , the State is mandated to provide Defendant
DHHL "sufficient" funds to pay for its operating and administrative expenses, which includes,
amongst other things, the required resources and expertise to "interpret and evaluate DNA test
results.
5>
64. By failing to seek the resources to obtain the expertise needed to evaluate DNA
evidence in a timely and efficient matter, Defendants have violated their trust duty.
COUNT 3
(VIOLATION OF CONSTITUTIONAL DUE PROCESS)
65 Plaintiff hereby realleges and incorporates by reference all the above allegations
i
8
66.
Under Haw. Const. Art. 1, § 5, the Defendants, as public officials,
deprive Plaintiff as a trust beneficiary of a property right without due process of law.
may not
67.
Due process requires a public official to make clear the basis of any rules he/she
is implementing that affect the ability of a beneficiary of the HHCA public trust to quality for the
benefits provided under that Act.
68. By failing to articulate the basis for refusing to accept scientifically justified proof
of the eligibility of Plaintiff for a homestead lease under the HHCA, Defendants are violating the
due process clause of the State Constitution.
69. Therefore, Plaintiff is entitled to a declaratory judgment that Defendants have
violated his due process rights to a clear set of standards for what proof is acceptable, or to a
reasoned articulation of why DNA evidence is not acceptable, to establish his qualification for
Hawaiian homestead lease under the HHCA.
COUNT 4
(VIOLATION OF RIGHT TO QUALIFY FOR HAWAIIAN HOMESTEAD LEASE)
a
70.
71.
Plaintiff hereby realleges and incorporates by reference all the above allegations
Pursuant to section 207 of the HHCA and HAR § 10-3-2, anyone who is 50% or
more Hawaiian blood and at least 1 8 years of age qualifies for a homestead lease of available
lands under the HHCA.
72. By reason of Defendant DHHL's arbitrary rejection of Plaintiff s DNA proof of
Hawaiian ancestry, the issue whether Mr. Kukonu is Plaintiffs natural father constitutes an
actual ongoing controversy between Plaintiff and Defendant, within the meaning of Chapter 632,
HRS, the Declaratory Judgment Act, as quoted above, over whether Plaintiff qualifies for
homestead lease under Section 207 of the HHCA.
73.
Pursuant to HRS Chapter 584, toe Hawai i Uniform Parentage Act (UPAX the
statutory period to file « court action for the determination of a father and child relationship is
three years from the petitioner attaining the age of majority.
74. Because more than three years have passed since Plafotiff reached the age of
majority, he cannot invoke die provisions of the UPA to seek the relief he desires, which would
correct the key vital statistic record that is the obstacle to his qualification for a homestead lease
under the HHCA.
9
75. Pursuant to HAR § 10-3-3(b), »[a]n applicant who disagrees with any action
taken by the department shall have thirty days from receipt of written notice of such action
within which to petition the department for appearance before the next regular meeting of the
commission concerning the action taken on the application."
76. Following Defendants' denial of his application for a homestead lease, Plaintiff
duly addressed the Commission at its next regular meeting.
77. The Commission took no action at that meeting and has continued to definitely
forgo resolution of this important issue on qualifying beneficiaries.
78. Consequently, Plaintiff has no other remedy to removing the obstacle now
preventing him from qualifying for the Hawaiian homestead lease under Section 207 of the
HHC A and, therefore, remains in a perpetual state of uncertainty as to whether he is qualified.
79. Accordingly, Plaintiff is entitled to a j udgment pursuant to HRS Chapter 632
declaring that: (a) the results of an avuncular DNA test confirms his genealogical relationship to
his natural uncle Rodney Kukonu and, (b) because this evidence confirms anecdotal evidence of
his paternal relationship to Rodney Kukonu's biological brother, Mr. Earick Kukonu, Sr., there ij
clear and convincing evidence to establish his Hawaiian ancestry as a direct grandchild of
Hannah Momi Needham and Gabriel Lani Kukonu and as the naturally born child of Ms.
Florence Kanani Silva and Mr. Earick Kukonu, Sr.
WHEREFORE, Plaintiff respectfully prays that this Court issue an order:
A. Declaring that Defendants have violated Section 222 of the HHCA, their
common law trust dirty with beneficiaries, like Plaintiff, and Plaintiff s
due process rights as a result of its refusal to establish, through rule-
making, the standards of proof required for qualification by applicants for
Hawaiian homestead teases under Section 207 of the HHCA, including the
acceptability of DNA and other documentary evidence in support of any
application for such leases;
B. Declaring that Plaintiff has an absolute right to obtain a timely
determination of his qualification for a Hawaiian homestead lease under
Section 207 of the HHCA, and HAR §10-3-2, based on the standard of
10
the scientific proof, including DNA test results, and other evidence
necessary to establish his qualification for such a lease;
C . Declaring that Plaintiff s natural father is Earick Kukonu, Sr. , which
establishes that Plaintiff had the requisite blood quantum to qualify for a
Hawaiian homestead lease under Section 207 of the HHCA;
D . Compelling Defendants to adopt more specific rules on what types of
evidence applicants for Hawaiian Home Lands leases must provide to
qualify for Hawaiian Home Lands benefits; and
E. For such further relief as this Court deems appropriate.
DATED: Honolulu, HawaTi, September 24, 2012.
ASHLEY K. OBRKY
CAMILLE K. KAEAMA
Attorneys for Plaintiff Leighton Niakala Pang Kee
11
